What if We Just “Certified” Lawyers Instead of Licensing Them?

Last week, I attended the FTC’s second Occupational Licensing Roundtable in Washington, D.C. The Roundtable – titled “The Effects of Occupational Licensure on Competition, Consumers, and the Workforce: Empirical Research and Results” – consisted of economists delving into the costs of occupational licensing. The prognosis is grim. Licensing requirements cost society a great deal (primarily in the form of higher prices and lack of economic freedom for workers to pursue a trade), while returning negligible benefits. Although most comments submitted to the Roundtable addressed other, more recently-licensed professions, Avvo and Responsive Law both submitted comments briefly summarizing some of the empirical data on the cost of legal licensing.

This is not to say that we believe attorneys should be wholly unregulated. Many of the costs of licensing stem from the breadth of the legal monopoly and the numerous restrictions on lawyer marketing and service delivery. These costs could be ameliorated simply by adopting a simpler, narrower licensing regime. But I was struck by a point of consensus by the Roundtable participants: that certification could replace licensure and deliver a massive benefit to consumers (in the form of lower cost, more innovation, and better access) while not meaningfully impacting public protection.

How would this work in the law? In a world of “certified” lawyers, only those possessing the qualification could use the title “lawyer.” But others could do most or all of what lawyers do, so long as they didn’t try to pass themselves off to the public as certified lawyers. There might be areas (like representing parties in litigation) where providing services would be limited to those possessing certification, but such areas would be few and far between.

Shocking? Not really; that’s largely how legal practice works today in many parts of the world, including England. In a world of certification, clients would have nearly all of the same public protective benefits of licensing while enjoying massively more choice in legal service offerings. It would even be better for lawyers, as certification should be more portable between states than licensure is (and lawyers could choose to still practice in another state regardless, assuming they are willing to forego certification). What’s more, local court-based certifications could flourish, getting back to one of the original purposes of geographic licensing – ensuring that local lawyers are experienced with local law and court procedures.

Lots of food for thought, and the FTC’s continued work in this area will bear close watching.